Restoring the NHS in England as an accountable public service

The proposed

NHS Reinstatement Bill

The proposed National Health Service Reinstatement Bill explained and set out in

this document has been drafted by Peter Roderick with the assistance of Professor

Allyson Pollock, having benefitted from discussions with individuals and

organisations concerned about the increasing role of the market over the last

twenty five years in the NHS in England.

We wish to consult on the Bill with those who share our concern and commitment to

reinstating fully the NHS as an accountable public service as smoothly as possible and

with only a minimal and exceptional role for commercial companies.

Responses can be sent to either or both of us by 15th

December 2014.

Peter Roderick Professor Allyson Pollock

p.roderick@qmul.ac.uk a.pollock@qmul.ac.uk

Centre for Primary Care and Public Health, Queen Mary, University of London

29th

August 2014

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Brief summary of the Bill

In short, the Bill proposes to reverse 25 years of marketization in the NHS by abolishing the

purchaser-provider split, re-establishing public bodies and fully restoring the NHS in England

as an accountable public service. It draws on some of the best examples of NHS

administration over its history, retains some features of the 2012 reforms and would be

implemented on a timescale determined by the Secretary of State.

It would:

• reinstate the government’s duty to provide the NHS in England,

• re-establish NHS England as a special health authority with regional committees and

modified functions,

• re-establish District Health Authorities, with Family Health Services Committees to

administer arrangements with GPs, dentists and others,

• abolish marketised bodies such as NHS trusts, NHS foundation trusts and clinical

commissioning groups, as well as Monitor, the regulator of NHS foundation trusts

and commercial companies,

• end virtually all commissioning and allow commercial companies to provide services

only if the NHS could not do so and otherwise patients would suffer,

• abolish competition,

• re-establish Community Health Councils to represent the interest of the public in the

NHS,

• stop licence conditions taking effect which have been imposed by Monitor on NHS

foundation trusts and that will have the effect of reducing by April 2016 the number

of services that they currently have to provide,

• bring the terms and conditions of staff employed in providing NHS services under the

NHS Staff Council,

• prohibit ratification of the Transatlantic Trade and Investment Partnership and other

international treaties without the approval of Parliament (and the devolved bodies)

if they would cover the NHS.

Many further and consequential amendments would also be necessary, for example relating

to public health and GP services, and these are currently covered in Schedules to the Bill.

Part 1 of this document explains the clauses of the Bill. Part 2 provides background notes on some of

the Schedules (page 11 onwards). Part 3 sets out the Bill (page 20 onwards).

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Part 1: Clause-by-Clause summaries

Clause 1 – Secretary of State’s duties to promote and provide a comprehensive health

service

Clause 1(1) would reinstate the Secretary of State’s legal duty to provide the NHS in

England. It would do so by effectively repealing the abolition of that duty as a result of

section 1 of the Health and Social Care Act 2012, and by reproducing the corresponding

provision that applied from 1946 until 2006.

Until 2006, the government’s overarching duty had been “to provide or secure effective

provision” of services. The NHS Act 2006 deleted the word “effective”, and also de-coupled

this duty from the duty to “promote” a comprehensive service.

The title of section 1 of the 2006 Act ("Secretary of State's duty to promote health service")

would revert to the title of section 1 of the National Health Service Act 1977, which made no

distinction between the connected duties of promotion and provision.

Clause 2 - Abolition of the duties of autonomy

This clause would repeal the two sections inserted into the 2006 Act which require the

Secretary of State and the NHS Commissioning Board, respectively, to have regard to the

desirability of securing, so far as consistent with the interests of the health service, that any

other person exercising functions in relation to the health service or providing services for

its purposes is free to exercise those functions or provide those services in the manner that

it considers most appropriate, and that unnecessary burdens are not imposed on any such

person. These duties are incompatible with a national health service which the Secretary of

State would, under this Bill, again have the duty to provide.

However, certain elements of section 1D of the 2006 Act in relation to the Secretary of

State’s power of directions would be retained under Clause 12 of the Bill.

Clause 3 - Secretary of State's duty to provide certain services

This clause would insert a new section 3 into the NHS Act 2006.

The new section 3(1) would set out the four basic categories of services that it would be the

Secretary of State’s duty to provide or secure the effective provision of:

• the long-standing duty to provide the services listed in new subsection (see new

section 3(2));

• functions relating to high security psychiatric services (see Clause 4);

• duties and powers relating to provision of medical, dental, ophthalmic and

pharmaceutical services (see Parts 4-7); and

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• functions in relation to other services, for example as regards school children and

blood supplies (see Schedule 1 of the 2006 Act, as amended by Schedule 1 of this

Bill).

The new section 3(2) would reinstate the duty of the Secretary of State to provide

“throughout England” hospital accommodation, services and facilities as in section 3(1) of

the 2006 Act, re-applying the duty as it was before the 2012 Health and Social Care Act. This

would replace the current duty on clinical commissioning groups (CCGs) to arrange provision

for persons for whom they are responsible, and CCGs would be abolished (see Clause 13).

Clause 4 - High security psychiatric services

This would re-establish the Secretary of State’s duty to provide high security psychiatric

hospitals and services under section 4(1) of the NHS Act 2006. The duty would also extend

to maintaining the same, as under the 1977 NHS Act (but which was dropped under section

41 of the Health Act 1999).

Clause 5 (and Schedule 1) - Other services

Schedule 1 of the 2006 Act set out a number of additional services in relation to which the

Secretary of State had obligations, dating back to the 1977 Act and even, in some instances,

the 1946 Act. They covered medical inspection of pupils, contraceptive services, vehicles for

disabled persons, a microbiological service and research. The 2012 Act added provisions

relating to the weighing and measuring of children and the supply of blood and human

tissue.

The obligations for most of these services would revert to the Secretary of State.

Background information on these services is provided below in Part 2.

Clause 6 - Public health functions of the Secretary of State and local authorities

The 2012 Act created public health functions as a new category of services divided between

the Secretary of State and local authorities. Neither of these bodies now have duties to

provide or to secure provision or to make arrangements for provision as regards public

health, only a metaphorically-expressed duty to “take steps” as they consider “appropriate”

for protecting the public from disease or other health dangers or for improving the health of

people. The Bill needs to address these functions (hence the envisaged Schedule 2),

including, for example, whether there is a need to re-establish a health promotion body.

More information is provided below in Part 2.

Clause 7 - Distribution of functions

This Clause would re-establish NHS England as a Special Health Authority – its form before

the 2012 Act - with Regional Committees, along with District Health Authorities (having

Family Health Service Committees).

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Clause 8 - NHS England and Regional Committees

The National Health Service Commissioning Board – the current NHS England’s formal name

– would be abolished and replaced by The National Health Service England Authority to be

called “NHS England”. It would have a number of Regional Committees covering the whole

of England, and Schedule 3 would provide details of its establishment.

Clause 8(4) would set out the main duty of NHS England. This would be to exercise on behalf

of the Secretary of State some of his duties under the National Health Service Act 2006, by

providing or securing effective provision of the services or facilities referred to in subsection

(5) in accordance with regulations.

The specific services and facilities listed in subsection (5) are those for which the current

NHS England may be required to make arrangements in accordance with regulations under

section 3B of the 2006 Act - dental services; services or facilities for members of the armed

forces, their families or prisoner – as well as others that may be prescribed if more

appropriate for NHS England to provide or secure effective provision of rather than the

Secretary of State or District Health Authorities (or their Family Health Services

Committees). In deciding whether it would be appropriate, the Secretary of State would

have to have regard to the same matters as currently under section 3B(3) and (4).

NHS England would perform its functions through its Regional Committees, save to the

extent that regulations provide otherwise; and regulations could provide otherwise where

the Secretary of State considers that provision is more appropriate on a national basis

rather than on regional bases.

Three preconditions are set out in Clause 8(12), which are intended to have the effect of

entitling NHS England to arrange for service provision outside the NHS exceptionally – but

necessarily to meet all reasonable requirements.

Clause 12 of the Bill covers directions to NHS England.

Clause 9 - District Health Authorities

Under Clause 9, District Health Authorities (DHAs) would become the heart of NHS services

on the ground. They would have the duty to exercise on behalf of the Secretary of State his

duty in section 1(1) of the National Health Service Act 2006 by exercising his or her functions

under specified provisions of that Act, including hospital and other accommodation;

medical, dental, nursing and ambulance services; facilities for the care of expectant and

nursing mothers and young children; facilities for the prevention of illness and the aftercare

of persons who have suffered from illness; and services under Schedule 1 of the 2006 Act

and Schedule 5 of this Bill. So for example, hospitals currently run by NHS trusts and NHS

foundation trusts (which would be abolished) would be transferred to the DHAs.

As for NHS England, DHAs would only be able to arrange for service provision outside the

NHS exceptionally; and would be subject to directions under Clause 12.

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Schedule 4 of the Bill would set out the basis for the constitution, membership etc. of DHAs,

and the basis for their boundaries needs consultation. The relationship of these boundaries

with those of local government (often referred to as ‘co-terminosity’) will be particularly

important in ensuring the closest cooperation between health and social services.

Schedule 5 would set out the many other functions that were necessarily part of the

Secretary of State’s functions for the running of the NHS, and the list will be finalised after

consultation.

Each DHA would have a Family Health Services Committee having the functions set out in

Clause 10.

Clause 10 - Family Health Services Committees

The duty of each Family Health Services Committee would be, in accordance with

regulations, to administer on behalf of the DHA the arrangements made under Parts 4-7 of

the National Health Service Act 2006 for the provision of medical, dental, ophthalmic and

pharmaceutical services for the district of the Authority, and to perform such other

functions relating to those services as may be prescribed.

Schedule 4, Part 2 makes further provision in respect of Family Health Services Committees

and the discharge of their functions. Background information on the current legal provisions

for medical services is set out in Part 2 below of this document.

Clause 11 - Special health authorities

Clause 11 makes clear that the Secretary of State retains full powers to establish Special

Health Authorities for performing any functions which he may direct the body to perform on

his behalf, or on behalf of NHS England or DHAs. This would be a possible approach to

provide planning for cities such as London, as an alternative, for example, to city-based and

enhanced local government representation on Regional Committees of NHS England.

Section 28A of the National Health Service Act 2006 is repealed, as this limits the duration of

new Special Health Authorities to a maximum period of three years.

Clause 12 – Directions

This clause would give the Secretary of State a general power of giving directions to NHS

England, a DHA, including any Family Health Services Committee, a Special Health Authority,

the National Institute for Health and Care Excellence, the Health and Social Care Information

Centre, and any other persons who are exceptionally providing other prescribed services.

However, this power would not usually be unrestricted. The Secretary of State would be

obliged to have regard to the desirability, so far as consistent with the interests of the

health service and relevant to the exercise of the power in all circumstances, of protecting

and promoting the health of patients and the public, and of the bodies being free to

exercise their functions in the manner that they consider best calculated to promote the

NHS.

7

These directions must be contained in regulations, except in a genuine emergency, so that

the exercise of executive power would be open to Parliamentary scrutiny and procedure.

This provision is a modified version of the duties of autonomy (the hands-off clauses)

introduced by the 2012 Act and which would be abolished by Clause 2.

Clauses 13 – 16 - Abolition of bodies, and staff transfer

Clauses 13 - 15 (and Schedule 6) would make provision for abolishing CCGs, NHS trusts and

NHS foundation trusts. Their property, rights and liabilities would transfer to the Secretary

of State, or to any other NHS body determined by him or her, such as DHAs. Clauses 13(5),

14(5) and 15(4) require regard to be had by the Secretary of State to Schedule 8 in

connection with the abolition of these bodies in order to ensure as smooth a transition as

possible in returning to a fully restored NHS.

Clause 16 would require the Secretary of State, after consultation with trade unions, to

make regulations which would set out the terms and conditions applying to the transfer of

staff from NHS trusts, NHS foundation trusts and CCGs to DHAs, NHS England and other NHS

bodies. These include entitlement to redundancy payments, particularly for senior staff

whose job loss is technical rather than real.

Clause 17 - Community Health Councils

This clause (with Schedule 7) would re-establish Community Health Councils, with the duty

of representing the interests of the local public in the health service. These were initially

established under section 9 of the NHS Reorganisation Act 1973, and were abolished in

England by section 22 of the NHS Reform and Health Care Professions Act 2002.

Clauses 18 and 19 - Abolition of Monitor, transfer to the CQC and Competition

Clause 18 would abolish Monitor, which currently regulates NHS foundation trusts and

licenses commercial companies and voluntary organisations. Many of its functions,

particularly those relating to competition under sections 72-80 of the 2012 Act, would also

be abolished. Those remaining would transfer to the Care Quality Commission (CQC).

The National Health Service (Procurement, Patient Choice and Competition) (No. 2)

Regulations 2013 (SI 2013 No. 500) would be repealed.

Currently, there is no objective underpinning Monitor’s (and under this Bill after transfer the

CQC’s) powers and duties – unlike Ofgem, for example. This Clause would make clear that

the end to which its residual functions under the 2012 Act must be directed is the

comprehensive health service that it is the Secretary of State’s duty to promote and provide

as a service of social solidarity based on cooperation.

By inserting into the 2012 Act a new section 61A(2) and by repealing section 62(9), the duty

of Monitor to act consistently with the Secretary of State’s duties to promote and provide

would be reinstated (and transferred to the CQC). Parliament had imposed that duty on

Monitor both in section 32 of the 2006 Act and in section 3 of the Health and Social Care

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(Community Health and Standards) Act 2003 (although in those enactments Monitor’s duty

also extended to acting consistently with the Secretary of State’s duty in relation to

university clinical teaching and research). The 2012 Act, in section 62(9), only imposed a

duty on Monitor in relation to the duty to promote under section 1(1) of the 2006 Act,

hence its proposed repeal under this Clause.

Clause 20 Continuity of mandatory services

Monitor has imposed licence conditions on NHS foundation trusts under which currently

mandatory services - basically those which had to be provided, under the old NHS

foundation trust authorisation system - will cease to be mandatory after April 2016, and a

new set of mandatory services will be put in place. Under its associated guidance issued in

March 2013, Monitor asks commissioners to consider the current list, and states that it

expects the number of mandatory services to decrease as a result. Clause 20 would have the

effect of annulling these licence conditions.

Clause 21 National terms and conditions

This Clause is intended to ensure that the UK-wide ‘Agenda for Change’ system under the

auspices of the non-statutory NHS Staff Council that has been in place since 2004 would

apply to all staff employed by those who provide NHS services, regardless of whether the

employer is in the public, commercial or voluntary sector. Currently this system only applies

to NHS trusts, NHS Foundation Trusts, Special Health Authorities, NHS England, CCGs, The

Health and Social Care Information Centre and NICE. Recognising the NHS as a national

service and the desirability of staff being able to move freely between its constituent parts

without suffering detriment would help ensure fairness, equity and equal value for NHS staff

and good patient care. This Clause would not affect those staff not currently covered by the

Agenda for Change system such as hospital doctors and dentists and very senior managers.

Clause 22 – Treaty requirements

25. This Clause follows the spirit of the example of section 6 of the European Assembly

Elections Act 1978 which provided for any increase in the powers of the Assembly, now

called the European Parliament, to be ratified by the United Kingdom only if there had been

prior approval by an Act of Parliament.

26. The Clause would make it impossible for any trade, investment or similar international

agreement – such as the proposed Transatlantic Trade and Investment Partnership (TTIP)

being negotiated between the European Union and the US - in effect to legislate for the NHS

without Parliament (or the relevant devolved legislature) giving its approval prior to

signature or agreement.

Clause 23 - Commencement and transitional arrangements

Clause 23 gives flexibility to the Secretary of State in the way in which the Act, except for

section 1, is brought into effect; and thus the timescale for its implementation. How this

flexibility would be exercised in practice would depend on considering the impact of a

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further major reorganisation on the appointed day necessary to reinstate the NHS (on the

one hand) and the undesirability of giving vested interests a post-enactment opportunity to

delay implementation (on the other). Transitional arrangements would be set out in

Schedule 8 in order to ensure as smooth a transition as possible in returning to a fully

restored NHS, and Clauses 13(5), 14(5) and 15(4) require regard to be had by the Secretary

of State to Schedule 8 in connection with the abolition of CCGs, NHS trusts and NHS

foundation trusts.

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Part 2: Schedules - Background Notes

Preliminary

Schedules have been included in the Bill in order to indicate the nature and range of

supplementary issues, transitional and consequential amendments and repeals entailed by a

new Bill. Many of the matters covered could be dealt with in a separate “NHS

(Consequential Provisions) Bill” that would be enacted simultaneously, as happened in 2006.

Some of the “standard” type of Schedules – such as those covering organizational aspects

for NHS England and its Regional Committees (Schedule 3), DHAs (Schedule 4) and

Community Health Councils (Schedule 7) – currently have no content, or indicative content

based on previous legislation.

Amongst the Schedules dealing with services are those relating to the Secretary of State and

other services (Schedule 1), Public Health (Schedule 2) and further functions of the DHAs

(Schedule 5).

Modifications to the provisions and functions relating to medical, dental, pharmaceutical

and ophthalmic services are currently envisaged in Schedule 9, Part 1. After consultation at

least some of these may be relocated to the main body of the Bill.

The notes below provide some background information to assist consideration of the

contents of Schedule 1 and 2 and of Schedule 9, Part 1 as regards medical services.

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Schedule 1 (Further provision about the Secretary of State and services) and Schedule 2

(Public Health)

Schedule 1 of the 2006 NHS Act contains several provisions of a public health nature, which

now need to be considered in the light of the public health functions of the Secretary of

State and local authorities (see Box below).

Box: The public health functions of the Secretary of State and local authorities since the 2012 Act: ss.2A and 2B

of the 2006 Act (as inserted by the 2012 Act)

National Health Service Act 2006

Provision for protection or improvement of public health

2A Secretary of State's duty as to protection of public health

(1) The Secretary of State must take such steps as the Secretary of State considers appropriate for the

purpose of protecting the public in England from disease or other dangers to health.

(2) The steps that may be taken under subsection (1) include—

(a) the conduct of research or such other steps as the Secretary of State considers appropriate for

advancing knowledge and understanding;

(b) providing microbiological or other technical services (whether in laboratories or otherwise);

(c) providing vaccination, immunisation or screening services;

(d) providing other services or facilities for the prevention, diagnosis or treatment of illness;

(e) providing training;

(f) providing information and advice;

(g) making available the services of any person or any facilities.

(3) Subsection (4) applies in relation to any function under this section which relates to—

(a) the protection of the public from ionising or non-ionising radiation, and

(b) a matter in respect of which the Health and Safety Executive has a function.

(4) In exercising the function, the Secretary of State must—

(a) consult the Health and Safety Executive, and

(b) have regard to its policies.

2B Functions of local authorities and Secretary of State as to improvement of public health

(1) Each local authority must take such steps as it considers appropriate for improving the health of the

people in its area.

(2) The Secretary of State may take such steps as the Secretary of State considers appropriate for

12

improving the health of the people of England.

(3) The steps that may be taken under subsection (1) or (2) include—

(a) providing information and advice;

(b) providing services or facilities designed to promote healthy living (whether by helping individuals to

address behaviour that is detrimental to health or in any other way);

(c) providing services or facilities for the prevention, diagnosis or treatment of illness;

(d) providing financial incentives to encourage individuals to adopt healthier lifestyles;

(e) providing assistance (including financial assistance) to help individuals to minimise any risks to

health arising from their accommodation or environment;

(f) providing or participating in the provision of training for persons working or seeking to work in the

field of health improvement;

(g) making available the services of any person or any facilities.

(4) The steps that may be taken under subsection (1) also include providing grants or loans (on such terms

as the local authority considers appropriate).

(5) In this section, “local authority” means—

(a) a county council in England;

(b) a district council in England, other than a council for a district in a county for which there is a county

council;

(c) a London borough council;

(d) the Council of the Isles of Scilly;

(e) the Common Council of the City of London.

Medical inspection of pupils

Since the 2012 Act, a local authority has responsibilities for the medical inspection and

treatment of pupils. This was previously the responsibility of the Secretary of State under

the 2006 Act. The Explanatory Notes to the 2012 Act suggest that this transfer is in the

context of the public health functions of local authorities under section 2B.

Under section 48 of the Education Act 1944, local education authorities were given a duty to

provide for medical inspection of pupils, and a duty to make arrangements to secure

“comprehensive facilities for free medical treatment are available”. This duty was repealed

by the 1973 NHS Reorganisation Act, replacing it with a duty on the Secretary of State to

make provision for the medical and dental inspection and treatment of pupils. The NHS Act

1977 replaced this duty with a power for the Secretary of State, by arrangement with the

local authority, to provide for both medical and dental inspections and treatment.

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Weighing and measuring of children

Since the 2012 Act, local authorities have the power (not duty) to provide for the weighing

and measuring of pupils under 12 at its schools, and the power to arrange the same with

private schools and registered child minders. From 2008 (when these provisions were first

introduced, by section 143 of the Health and Social Care Act 2008) until the 2012 Act, the

Secretary of State had the power to provide by arrangement with local education

authorities, or such private schools and minders.

The Secretary of State has the power to make regulations authorizing disclosure of

information about the children to those carrying out the weighing and measuring,

prescribing how to conduct the activities, authorizing disclosure of the results to parents

and regulating the processing of the results. The current regulations are set out in Part 3 of

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny)

Regulations 2013 (S.I. No. 218), which require local authorities to disclose the results to the

Health and Social Care Information Centre, which is given the power to disclose it to any

other person “with a view to enabling further processing of the information for the

purposes of research, monitoring, audit or the planning of services, or for any purpose

connected with public health, subject to the condition that the information may be

disclosed only in a form in which no individual child can be identified”.

From 2008 – 2013, it appears that Primary Care Trusts carried out the weighing and

measuring under the annual National Child Measurement Programme (The National Child

Measurement Programme Regulations 2008 (S.I. No. 3080)).

Supply of blood and other human tissues

The 2012 Act (section 17(9)) imposed a new duty on the Secretary of State to make

arrangements for collecting, screening, analyzing, processing and supplying blood and other

tissues (and related services) and for facilitating organ and tissue transplantation. According

to the Explanatory Notes to the 2012 Act, this new specific duty was needed because the

Secretary of State’s duty to provide under section 3 of the 2006 Act was abolished, along

with other changes to section 2 (general power). Those Notes also state that “[a]s now, the

functions would be performed by NHS Blood and Transplant, a Special Health Authority,

rather than by the Department of Health”.

Contraceptive services

Since the 1973 NHS Reorganisation Act, the Secretary of State has had the duty to arrange

the giving of advice on contraception, the medical examination and treatment of those

seeking such advice and the supply of contraceptive substances and appliances. This duty

remains in place.

Provision of vehicles for disabled persons

Since the 2012 Act, CCGs have a power to make arrangements for providing vehicles

including wheelchairs for persons for whom they are responsible and who appear to have a

14

physical impairment. They also have the power to make arrangements to adapt, maintain,

repair and insure the vehicle, including providing a structure in which to keep it. CCGs are

also enabled to make grants for adapting (etc.), for buying fuel and learning to drive it.

This was previously the power of the Secretary of State under the 2006 Act, which in turn

was an updated version of the power in the 1977 Act (to provide “invalid carriages for

persons appearing to him to be suffering from severe physical defect or disability”).

Provision of a microbiological service by the Secretary of State

Under the 1977 Act, a power was conferred on the Secretary of State to “provide a

microbiological service, which may include the provision of laboratories, for the control of

the spread of infectious diseases (and the Secretary of State may allow persons to use

services provided at such laboratories on such terms, including terms as to charges, as he

thinks fit)”. This service constituted “the public health laboratory service”. The Public Health

Laboratory Service Act 1979 (enacted at the very end of the Callaghan government)

extended this power so that it included the power to “carry on such other activities as in his

opinion can conveniently be carried on in conjunction with that service”, as well as powers

to charge and to exercise the power for non-NHS purposes.

Since the 2012 Act “providing microbiological or other technical services (whether in

laboratories or otherwise)” has been one of the listed “steps that may be taken” pursuant to

the Secretary of State’s duty under section 2A to “take steps as [he] considers appropriate

for the purpose of protecting the public in England from disease or other dangers to health”.

The power in paragraph 12 of Schedule 1 has been modified to reflect that.

Note that the 1977 Act continued the “Public Health Laboratory Service Board”, a body

corporate,” for the purpose of exercising such functions with respect to the administration

of the public health laboratory service”. It was abolished by section 4 of the Health and

Social Care (Community Health and Standards) Act 2003.

[Schedule1 of the 2006 Act also covers research functions]

A historical note on the functions of local authorities under the NHS Act 1946 is included in the

Appendix to this Part 2.

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Schedule 9, Part 1 - Medical, dental, pharmaceutical and ophthalmic services

This Part of the Bill would contain amendments to those Parts of the 2006 Act that relate to

these services, as they would become administered by a DHA’s Family Health Services

Committee. The remainder of this note relates only to medical services.

Since the 2012 Act, NHS England has an over-arching duty, to the extent that it considers

necessary to meet all reasonable requirements, to exercise its powers so as to provide

primary medical services. (This was a duty previously imposed on area-based Primary Care

Trusts, initially introduced in the 2003 Health and Social Care (Community Health and

Standards) Act 2003.)

NHS England has 3 specific powers in this regard - also previously conferred on PCTs, and

subject to directions from the Secretary of State under s.98A(3) of the 2006 Act as inserted

by s.49 of the 2012 Act – which form the basis for the 3 medical services contract types:

(a) A general and widely-expressed power to make arrangements as it considers

appropriate, including entering contracts with any person, under s.83(2) of the 2006

Act – such as commercial companies or voluntary organisations. These have become

known as Alternative Personal Medical Services (APMS) contracts, though the term

does not appear in primary legislation (nor, it seems, in regulations). This power was

first introduced in the 2003 Act; and is not subject to additional requirements in the

same way as both of the following two powers are (except for directions under

s.98A(3): see the Alternative Provider Medical Services Directions 2013);

(b) A power to enter into a contract with specified persons under ss. 84 et seq., referred

to as general medical services (GMS) contracts. These are subject to several

requirements, set out in the primary Act, in extensive regulations (see the NHS

(General Medical Services Contracts) Regulations 2004, as amended, most recently

last March by the NHS (General Medical Services Contracts and Personal Medical

Services Agreements) Amendment Regulations 2014), and also in directions from the

Secretary of State. GMS contracts can be made with medical practitioners, and also

with (e.g.) companies owned by them, and with NHS trusts. This legal route is not

open to commercial companies such as Virgin or United Health (who can be awarded

APMS contracts).

The statutory origin of this power was the duty imposed (first) on area-based

Executive Councils in s.33 of the 1946 Act and (later) on various health authorities

under 29 of the 1977 Act (since abolished) to make arrangements with medical

practitioners for the provision by them of personal medical services for all persons in

the area who wished to take advantage of the arrangements.

(c) A power to make agreements with specified persons under s.92 et seq., referred to

as “s.92 arrangements) and as personal medical services (PMS) contracts. Similar to

GMS contracts, but offering more local flexibility, PMS contracts are also subject to

several requirements in regulations (see the NHS (Personal Medical Services

Agreements) Regulations 2004, as amended), and in directions. This mechanism was

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first introduced as a “pilot scheme” in the 1997 NHS (Primary Care) Act – one of the

last Acts of the Major government – and made permanent in the 2003 Act.

It would be consistent with the scheme of the Bill to transfer NHS England’s powers to DHAs

in order for them to be administered by their Family Health Services Committees, and to

permit the power to enter into APMS contracts to be exercised only if it is not reasonably

practicable for a DHA to provide the services, or for a GMS or PMS contract to be entered

into, and if an APMS contract is necessary to meet all reasonable requirements (i.e.,

effectively the same preconditions for commercial company involvement as in Clause 9(4)

for DHAs (and Clause 8(12) for NHS England).

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Appendix – historical note

The functions of local authorities under the NHS Act 1946

County and borough councils - termed local health authorities (LHAs) - were given a critical role in

the NHS from the start, under ministerial control. (NHS Act 1946, Part III, ss.19-30).

Summary

Scope

They were required under section 20 to submit to the Minister their proposals relating to eight

categories of service which subject to the Minister’s approval it was their duty to carry out. These

categories related to health centres, care of mothers and young children, midwifery, health visiting,

vaccination and immunization (against small pox and diptheria as a minimum), ambulance services

and the prevention of illness, care and after-care. ‘Domestic help’ formed a ninth category.

Charging

Means-tested charges could be made for domestic help and services related to prevention of illness,

care and after-care; and also for “articles” relating to the care of mothers and young children.

Duties

No duty was expressed as having to meet “reasonable requirements”, but the number of midwives

for stated purposes had to be “adequate for the needs of the area”. Only in the case of health

centres was there a direct LHA duty to provide and to employ staff (though not all staff). Midwives,

health visitors, home visitors and ambulance staff could be employees of LHAs or voluntary

organizations. Ambulance staff could also be employed by private companies or other public bodies;

and private companies could also provide vaccines and sera to the Minister for onward supply.

These duties were either transferred or abolished under the NHS Reorganisation Act 1973. More

detail on the nine categories is set out below.

Service categories

Health centres

Amongst these eight categories, the only one which it was the authority’s duty directly to provide

(equip and maintain to the satisfaction of the Minister) was health centres, under section 21. These

were premises at which facilities would be available for at least one of six categories of service -

general medical services, dental and pharmaceutical services; for the provision or organisation of

any of the services which the LHA are required or empowered to provide; services of specialists or

other services provided for outpatients under Part III; or for the exercise of the powers conferred on

the LHA by s.179 of the Public Health Act 1936, or s.298 Public Health (London) Act 1936; for the

publication of information on questions relating to health or disease; and for the delivery of lectures

and the display of pictures or cinematograph films in which such questions are dealt with. The

authority was also obliged to provide staff at the centres to the Minister’s satisfaction (but not

medical and dental staff providing (Part IV services).

18

Care of mothers and young children

The LHA had a duty under section 22 “to make arrangements for the care, including in particular

dental care, of expectant and nursing mothers and of children who have not attained the age of 5

years and are not attending primary schools maintained by a local health authority” – and were

empowered to make reasonable charges (subject to ministerial approval) “in respect of articles

provided” having regard to the means of those persons. They were also empowered with approval

to contribute to any voluntary organization formed for such purposes.

Midwifery

LHAs became the local supervising authority under Midwives Acts 1902-1936, and were given the

duty to “secure” - whether by making arrangements with Boards of Governors of teaching hospitals,

hospital management committees or voluntary organizations for the employment by those Boards,

committees or organizations of certified midwives or by themselves employing such midwives - “that

the number of certified midwives so employed who are available in the authority’s area for

attendance on women in their homes as midwives, or as maternity nurses during childbirth and from

time to time thereafter during a period not less than the lying-in period, is adequate for the needs of

the area”.

Health visiting

LHAs were also given the duty under section 24 “to make provision in their area for the visiting of

persons in their homes by visitors, to be called ‘health visitors’, for the purpose of giving advice as to

the care of young children, persons suffering from illness and expectant or nursing mothers, and as

to the measures necessary to prevent the spread of infection.”. This could be done by making

arrangements with voluntary organizations for the employment by those organizations of health

visitors, or by the LHA itself employing health visitors.

Home nursing

A similar duty was imposed on LHAs under section 25 to “to make provision…for securing the

attendance of nurses on persons who require nursing in their own homes”; again, by making

arrangements with voluntary organizations for the employment by them of nurses or by the LHA

itself employing such nurses.

Vaccination and immunization

Each LHA was obliged to make arrangements with medical practitioners for small pox vaccinations

and diphtheria immunizations, under section 26. They were also empowered to make similar

arrangements against any other disease if approved by the Minister; and were obliged to do so if

directed by him or her. The Minister was empowered – directly or by through arrangements with

such persons as he or she thought fit (so including private companies) – to supply the vaccines, sera

or other preparations free of charge.

Ambulance services

Under section 27, it was the duty of every LHA “to make provision for securing” that ambulances and

other means of transport are available, where necessary, for the conveyance of persons suffering

from illness or mental defectiveness, and of expectant or nursing mothers. This duty could be

performed by the LHA itself providing the necessary ambulances etc. and the necessary staff, or by

making arrangements with voluntary organizations “or other persons” for the provision by them of

such ambulances, transport and staff. Of the LHA services, this is the only instance where it is

19

specified that the arrangements can be made with persons other than voluntary organizations (e.g.,

with private companies).

Prevention of illness, care and after-care

Making arrangements for the purpose of the prevention of illness, the care of persons suffering from

illness or mental defectiveness, or the after-care of such persons, was also a power given to LHAs,

with ministerial approval. (It is curious that section 28 refers expressly to ministerial approval,

because all these LHA services are subject to such approval under section 20, so it might be that this

service was seen particularly as needing central control.) LHAs were empowered to make reasonable

and means-tested charges (subject to ministerial approval); and could with approval contribute to

voluntary organizations formed for these purposes.

Domestic help

An LHA was also empowered to “make such arrangements as the Minister may approve for

providing domestic help for households where such help is required owing to the presence of any

person who is ill, lying-in, an expectant mother, mentally defective, aged, or a child not over

compulsory school age”. Again, reasonable and means-tested charges with ministerial approval

could be made. Proposals for domestic help did not have to be submitted to the Minister under

section 20 along with proposals for the other eight categories of service.

Part 3 follows

20

NHS Reinstatement Bill

CONTENTS

PART 1

SERVICES, ADMINISTRATION AND ACCOUNTABILITY

1 Secretary of State’s duties to promote and provide a comprehensive health service

2 Abolition of the duties of autonomy

3 Secretary of State’s duty to provide certain services

4 High security psychiatric services

5 Other services

6 Public health functions of the Secretary of State and local authorities

7 Distribution of functions

8 NHS England and Regional Committees

9 District Health Authorities

10 Family Health Services Committees

11 Special health authorities

12 Directions

13 Abolition of clinical commissioning groups

14 Abolition of NHS trusts

15 Abolition of NHS foundation trusts

16 Terms and conditions of staff transfers

17 Community Health Councils

PART 2

REGULATION OF HEALTH AND ADULT SOCIAL SERVICES

18 Abolition of Monitor and transfer to the Care Quality Commission

19 Competition

20 Continuity of mandatory services

PART 3

TERMS AND CONDITIONS

21 National terms and conditions

PART 4

TREATIES

22 Treaty requirements

21

PART 5

FINAL PROVISIONS

23 Commencement and transitional arrangements

24 Further and consequential amendments

25 Interpretation

26 Short title and extent

SCHEDULES

Schedule 1 – Further provision about the Secretary of State and services

Schedule 2 – Public Health

Schedule 3 - NHS England and its Regional Committees

Schedule 4 - District Health Authorities

Schedule 5 – District Health Authorities: Additional Functions

Schedule 6 – Repeals

Part 1: Further repeals consequent on abolition of clinical commissioning groups

Part 2: Further repeals consequent on abolition of NHS trusts

Part 3: Further repeals consequent on abolition of NHS foundation trusts

Part 4: Further repeals consequent on the abolition of the National Health Service

Commissioning Board

Part 5: Other miscellaneous repeals

Schedule 7 - Community Health Councils

Schedule 8 – Transitional Arrangements

Schedule 9 – Further and consequential amendments

Part 1: Medical services, dental services, pharmaceutical services, ophthalmic

services

Part 2: Regulation of health and social care

Part 3: Public involvement, local government and scrutiny

Part 4: The National Institute for Health and Care Excellence

Part 5: The Health and Social Care Information Centre

Part 6: Charging

Part 7: Protection of NHS from fraud and other unlawful activities

Part 8: Property and finance

Part 9: Miscellaneous

22

A

B I L L

TO

Re-establish the Secretary of State’s legal duty as to the National Health Service in England;

to halt and reverse marketization; to make provision for the administration and accountability

of the National Health Service; to abolish certain bodies; to protect mandatory services; and

for associated purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

PART 1

SERVICES, ADMINISTRATION AND ACCOUNTABILITY

Duties of the Secretary of State

1 Secretary of State’s duties to promote and provide a comprehensive health

service

For section 1 of the National Health Service Act 2006 (Secretary of State’s duty to

promote comprehensive health service) substitute—

“1 Secretary of State’s duty as to the health service

(1) It shall be the duty of the Secretary of State to promote in England a

comprehensive health service designed to secure improvement—

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of illness,

and for that purpose to provide or secure the effective provision of services in

accordance with this Act.

23

(2) The services so provided must be free of charge except in so far as the making

and recovery of charges is expressly provided for, by or under any enactment,

whenever passed.”

2 Abolition of the duties of autonomy

Sections 1D and 13F of the National Health Service Act 2006 (duties as to

promoting autonomy) are repealed.

Duties as to certain services

3 Secretary of State’s duty to provide certain services

(1) For section 3 of the National Health Service Act 2006 (Duties of clinical

commissioning groups as to commissioning certain health services) substitute—

“3 Secretary of State’s duty to provide certain services

(1) The duty of the Secretary of State under section 1(1) to provide or secure

the effective provision of services includes—

(a) the duty of the Secretary of State imposed by subsection (2) below,

(b) duties and powers in relation to high security psychiatric services in

accordance with section 4 below;

(c) duties and powers in Part 4 (medical services), Part 5 (dental services),

Part 6 (Ophthalmic services) and Part 7 (Pharmaceutical services and

local pharmaceutical services) below; and

(d) duties and powers in relation to other services, in accordance with

Schedule 1 of this Act.

(2) It is the Secretary of State’s duty to provide throughout England, to such

extent as he considers necessary to meet all reasonable requirements—

(a) hospital accommodation;

(b) other accommodation for the purpose of any service provided under

this Act;

(c) medical, dental, nursing and ambulance services;

24

(d) such other facilities for the care of expectant and nursing mothers and

young children as he considers are appropriate as part of the health

service;

(e) such facilities for the prevention of illness, the care of persons

suffering from illness and the after-care of persons who have suffered

from illness as he considers are appropriate as part of the health service;

(f) such other services as are required for the diagnosis and treatment of

illness.

(3) The Secretary of State may provide or secure the provision of anything

mentioned in subsection (2) above outside England.

(4) Subsection (2) does not affect the provisions of Parts 4-7 (which relate to

arrangements with practitioners for the provision of medical, dental,

ophthalmic and pharmaceutical services).”

(2) Section 3 (Duties of clinical commissioning groups as to commissioning certain

health services) and section 3A (Power of clinical commissioning groups to

commission certain health services) of the National Health Service Act 2006 are

repealed.

4 High security psychiatric services

In section 4(1) of the National Health Service Act 2006, for the words “The Board

must arrange for the provision of” substitute the words “The Secretary of State's

duty under section 1(1) includes a duty to provide and maintain”.

5 Other services

Schedule 1 of this Act makes further provision about the Secretary of State and

services under the National Health Service Act 2006 and amends Schedule 1 of

that Act.

25

6 Public health functions of the Secretary of State and local authorities

Schedule 2 of this Act shall have effect in relation to section 2A (Secretary of

State’s duty as to protection of public health) and section 2B (Functions of local

authorities and Secretary of State as to improvements of public health) of the

National Health Service Act 2006.

Administration

7 Distribution of functions

There shall be established—

(a) a Special Health Authority to be known as the National Health Service

England Authority, with Regional Committees, in accordance with and having

the functions referred to in section 8 below,

(b) District Health Authorities, with Family Health Service Committees, in

accordance with and having the functions referred to in sections 9 and 10

below.

8 NHS England and Regional Committees

(1) The National Health Service Commissioning Board is abolished.

(2) The Special Health Authority known as The National Health Service England

Authority (referred to in this Act as “NHS England”) established pursuant to section

26

7(a) above shall have a number of Regional Committees covering the whole of

England.

(3) Schedule 3 makes further provision in relation to the establishment of NHS England

and its Regional Committees.

(4) NHS England shall exercise on behalf of the Secretary of State his duty in section

1(1), and, to the extent relevant, his duty under section 3(2), of the National Health

Service Act 2006, by providing or securing effective provision of the services or

facilities referred to in subsection (5) below in accordance with regulations made by the

Secretary of State.

(5) The services or facilities referred to in subsection (4) are—

(a) dental services of a prescribed description;

(b) services or facilities for members of the armed forces or their families;

(c) services or facilities for persons who are detained in a prison or in other

accommodation of a prescribed description;

(d) such other services or facilities as may be prescribed that—

(i) support District Health Authorities (including their Family Health

Services Committees) and other Special Health Authorities in

discharging their functions, or

(ii) are more appropriate for NHS England to provide or secure

effective provision of rather than the Secretary of State or District

Health Authorities (or their Family Health Services Committees).

(6) In deciding for the purposes of subsection (5)(d)(ii) whether it would be

appropriate, the Secretary of State must have regard to—

(a) the number of individuals who require the provision of the service or

facility;

(b) the cost of providing the service or facility;

(c) the number of persons able to provide the service or facility; and

(d) the financial implications of NHS England providing or securing effective

provision of the service rather than any of the other persons or bodies

mentioned in that subsection.

27

(7) Before deciding whether to make regulations under subsection (5), the Secretary of

State must—

(a) obtain advice appropriate for that purpose, and

(b) consult NHS England.

(8) The reference in subsection (5)(b) to members of the armed forces is a reference

to persons who are members of—

(a) the regular forces within the meaning of the Armed Forces Act 2006, or

(b) the reserve forces within the meaning of that Act.

(9) The Secretary of State may also make regulations containing directions to NHS

England relating to their functions under this section in accordance with section

12 below.

(10) NHS England shall perform its functions through its Regional Committees, save

to the extent that regulations provide otherwise.

(11) The Secretary of State may make regulations that provide otherwise where he

considers that it is more appropriate for a service or facility to be provided, or for its

effective provision to be secured, on a national basis rather than on regional bases.

(12) NHS England may make arrangements with any person for the provision of the

services or facilities referred to in subsection (5) provided that—

(a) it is not reasonably practicable for those services or facilities to be provided

directly by—

(i) NHS England (including by one or more of its Regional Committees), or

(ii) by another health service body,

(b) all reasonable requirements for those services or facilities could not

foreseeably be met in the absence of such arrangements, and

(c) the person holds a licence under Chapter 3 of Part 3 of the Health and

Social Care Act 2012.

(13) “Health service body” means any of the following—

(a) NHS England, including one or more of its Regional Committees,

(b) a DHA, including one or more of its Family Health Services Committee,

28

(c) a Special Health Authority,

(d) a Local Health Board,

(e) a Health Board constituted under section 2 of the National Health Service

(Scotland) Act 1978 (c. 29),

(f) a Special Health Board constituted under that section,

(g) a Health and Social Services Board constituted under the Health and

Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265

(N.I.14)),

(h) the Common Services Agency for the Scottish Health Service,

(i) the Wales Centre for Health,

(j) the Care Quality Commission,

(k) NICE,

(l) the Health and Social Care Information Centre,

(m) the Scottish Dental Practice Board,

(n) the Secretary of State,

(o) the Welsh Ministers,

(p) the Scottish Ministers,

(q) Healthcare Improvement Scotland,

(r) the Northern Ireland Central Services Agency for the Health and Social

Services established under the Health and Personal Social Services (Northern

Ireland) Order 1972,

(s) a special health and social services agency established under the Health and

Personal Social Services (Special Agencies) (Northern Ireland) Order 1990

(S.I. 1990/247 (N.I.3)),

(t) a Health and Social Services trust established under the Health and Personal

Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I.1)),

(u) the Department of Health, Social Services and Public Safety.

(14) An arrangement made by NHS England and another health service body shall not

be regarded as giving rise to contractual rights or liabilities.

29

9 District Health Authorities

(1) It is the duty of the Secretary of State to establish by order in accordance with

Schedule 4 to this Act authorities to be called District Health Authorities (referred to

in this Act as “DHAs”) for districts within regions that—

(a) correspond with those of the Regional Committees of NHS England, and

(b) have Family Health Services Committees with the functions referred to in

section 10.

(2) A DHA shall exercise on behalf of the Secretary of State his duty in section 1(1) of

the National Health Service Act 2006 by exercising his functions under the following

provisions of that Act—

(a) section 3(2)(a) and (b), with respect to the provision of hospital and other

accommodation for the purposes of any service provided under the Act,

(b) section 3(2)(c), with respect to the provision of medical, dental, nursing and

ambulance services,

(c) section 3(2)(d), with respect to the provision of facilities for the care of

expectant and nursing mothers and young children,

(d) section 3(2)(e), with respect to the provision of facilities for the prevention of

illness and the aftercare of persons who have suffered from illness,

(e) section 3(1)(f), with respect to the provision of such other services as are

required for the diagnosis and treatment of illness,

(f) Schedule 1 of that Act (as modified by Schedule 1 of this Act), with respect to

the other services referred to therein, and

(h) Schedule 5 of this Act, with respect to the additional functions set out therein.

(3) The Secretary of State may also make regulations containing directions to District

Health Authorities relating to their functions under this section in accordance with

section 12 below.

(4) A DHA may make arrangements with any person for the provision of the services

or facilities referred to in subsection (2) provided that—

(a) it is not reasonably practicable for those services or facilities to be provided

directly by—

(i) that DHA or by another DHA, or

30

(ii) by another health service body,

(b) all reasonable requirements for those services or facilities could not

foreseeably be met in the absence of such arrangements, and

(c) the person holds a licence under Chapter 3 of Part 3 of the Health and Social

Care Act 2012.

(5) “Health service body” has the same meaning as in section 8(13) above.

(6) An arrangement made by a DHA (including by its Family Health Services Committee

under section 10 below) and another health service body shall not be regarded as

giving rise to contractual rights or liabilities.

10 Family Health Services Committees

(1) It is the duty of each Family Health Services Committee established under section

9(1) above, in accordance with regulations—

(a) to administer, on behalf of the District Health Authority, the arrangements

made under Parts 4-7 of the National Health Service Act 2006 for the provision of

medical, dental, ophthalmic and pharmaceutical services for the district of the

Authority, and

(b) to perform such other functions relating to those services as may be prescribed.

(2) Schedule 4, Part 2 makes further provision in respect of Family Health Services

Committees and the discharge of their functions under subsection (1).

11 Special health authorities

(1) If the Secretary of State considers that a special body should be established for the

purpose of performing any functions which he may direct the body to perform on

his behalf, or on behalf of NHS England (including on behalf of one or more of its

Regional Committees), a District Health Authority (including its Family Health

31

Services Committee), he may by order establish a body for that purpose in

accordance with section 28 (Special Health Authorities) of the National Health

Service Act 2006.

(2) Section 28A of the National Health Service Act 2006 is repealed.

12 Directions

(1) The Secretary of State may direct any of the bodies mentioned in subsection (2) to

exercise any functions relating to the health service which are specified in the

directions, and may also give directions to any such body about its exercise of any

functions or about its provision of services under arrangements referred to in

subsection (2)(f).

(2) These bodies are—

(a) NHS England, including any or all of its Regional Committees,

(b) a DHA, including any Family Health Services Committee,

(c) a Special Health Authority,

(d) the National Institute for Health and Care Excellence,

(e) the Health and Social Care Information Centre, and

(f) any other body or person providing services in pursuance of prescribed

arrangements.

(3) In exercising his power under subsection (1), the Secretary of State must have

regard to the desirability, so far as consistent with the interests of the health service and

relevant to the exercise of the power in all circumstances—

(a) of protecting and promoting the health of patients and the public,

(b) of any bodies mentioned in subsection (2) being free, in exercising its

functions or providing services in accordance with its duties and powers, to do so

in the manner that it considers best calculated to promote the comprehensive

service referred to in section 1 (1) of the National Health Service Act 2006, and

(c) of ensuring co-operation between the bodies mentioned in subsection (2) in the

exercise of their functions or provision of services.

32

(4) If, in having regard to the desirability of the matters referred to in subsection (3) the

Secretary of State considers that there is a conflict between those matters and the

discharge of his duties under section 1 of the National Health Service Act 2006, he must

give priority to the duties under that section.

(5) Directions under this section must be contained in regulations, except in an

emergency, but cannot as directions modify the terms of any enactment.

Abolition of bodies

13 Abolition of clinical commissioning groups

(1) Clinical commissioning groups are abolished.

(2) Chapter A2 of the National Health Service Act 2006 (Clinical Commissioning

Groups) (sections 14A to 14Z24) is repealed.

(3) Schedule 6, Part 1 has effect for the purposes of further consequential repeals.

(4) On the day this section is commenced by order the property, rights and liabilities of

clinical commissioning groups shall vest in the Secretary of State or in any other NHS

body determined by him in accordance with regulations made under this section.

(5) In making such an order and regulations the Secretary of State shall have regard to the

provisions of section 23 and of Schedule 8 (Transitional Arrangements) of this Act.

14 Abolition of NHS trusts

(1) The Secretary of State shall exercise his power under paragraph 28(1) of Schedule 4

of the National Health Service Act 2006 to dissolve by order all NHS trusts.

33

(2) The following provisions of Part 3 of Schedule 4 of the National Health Service Act

2006 (NHS trusts established under section 25: Dissolution) shall apply to dissolution

under subsection (1):

(a) paragraph 28(3) (such prior consultation as may be prescribed),

(b) paragraph 29 (transfer by order of properties, liabilities and employed staff to

himself or an NHS body), and

(c) paragraph 30 (responsibility for continued payment of pension, allowances

and gratuities).

(3) Chapter 3 of Part 2 of the National Health Service Act 2006 (Health Service Bodies:

NHS trusts) (sections 25 to 27) is repealed, including save as aforesaid Schedule 4,

and including Schedule 5 thereof (Financial provision about NHS trusts).

(4) In making an order dissolving an NHS trust under this section the Secretary of State

shall have regard to the provisions of section 23 and of Schedule 8 (Transitional

Arrangements) of this Act.

(5) Schedule 6, Part 2 has effect for the purpose of further consequential repeals.

15 Abolition of NHS foundation trusts

(1) NHS foundations trusts are abolished.

(2) Chapter 5 of Part 2 of the National Health Service Act 2006 (Health Service Bodies:

NHS foundation trusts) (sections 30 – 65) is repealed.

(3) On the day this section is commenced by order the property, rights and liabilities of

NHS foundation trusts shall vest in the Secretary of State or in any other NHS body

determined by him in accordance with regulations made under this section.

(4) In making such an order and such regulations, the Secretary of State shall have regard

to the provisions of section 23 and of Schedule 8 (Transitional Arrangements) of this

Act.

34

(5) Schedule 6, Part 3 has effect for the purpose of further consequential repeals.

16 Terms and conditions of staff transfers

(1) The Secretary of State shall make regulations determining the terms and conditions

relating to the transfer of staff as the result of abolition of any of the bodies referred to

in sections 13, 14 and 15, including terms and conditions relating to eligibility for

redundancy payments.

(2) Before making those regulations, he shall consult with representatives of those staff.

Accountability

17 Community Health Councils

(1) It shall be the duty of the Secretary of State to establish in accordance with this

section a Council for the district of each DHA or separate Councils for such separate

parts of the districts of those Authorities as he thinks fit; and such a council shall be

called a Community Health Council (and is hereafter referred to as a "Council").

(2) It shall be the duty of a Council—

(a) to represent the interests in the health service of the public in its district; and

(b) to perform such other functions as may be conferred on it by virtue of the

following subsection.

(3) Schedule 7 shall have effect.

35

PART 2

REGULATION OF HEALTH AND ADULT SOCIAL SERVICES

18 Abolition of Monitor and transfer to the Care Quality Commission

(1) Subject to subsection (2), Monitor is abolished and its functions and objective at the

date of abolition shall be transferred to the Care Quality Commission.

(2) Subsection (1) shall come into effect by order of the Secretary of State [made no

later than 1st April 2016].

(3) The Health and Social Care Act 2012 is amended as follows.

(4) After section 61 (Monitor) insert—

“61A Monitor’s objective (to be transferred to the Care Quality Commission)

(1) The objective of Monitor is, through the exercise of its functions, to

contribute to the achievement of a comprehensive health service in England as a

service of social solidarity based on cooperation.

(2) In exercising its main duty and other functions Monitor must act in

accordance with that objective and in a manner consistent with the performance

by the Secretary of State of his duties contained in sections 1 and 3 of the

National Health Service Act 2006.

(3) The objective in subsection (1) and the duty in subsection (2) shall transfer

to the Care Quality Commission in accordance with section 18(1) of the NHS

Reinstatement Act 2014.”

(4) In section 62 (General duties), at the end of subsection (1), after “services”,

delete “.” and insert “, where provision of those services is made pursuant to

arrangements under and in accordance with the Emergency NHS Reinstatement

Act”.

(5) Section 62(9) is repealed.

36

19 Competition

(1) Sections 72- 80 (Competition) of the Health and Social Care Act 2012 are repealed.

(2) The National Health Service (Procurement, Patient Choice and Competition)

(No. 2) Regulations 2013 are repealed.

20 Continuity of mandatory services

Conditions in a licence issued to an NHS foundation trust by Monitor pursuant to section

87(3) of the Health and Social Care Act 2012 which purport to have the effect by April

2016 of modifying, de-designating or ceasing services which that trust was obliged to

provide under its previous authorisation given pursuant to section 35 of the National

Health Service Act 2006 shall be void and of no effect.

PART 3

TERMS AND CONDITIONS

21 National terms and conditions

(1) Staff employed in providing NHS services shall be employed on terms and conditions

in accordance with the arrangements of the NHS Staff Council.

(2) Subsection (1) applies regardless of whether the provider is licensed under Chapter 3

of Part 3 of the Health and Social Care Act 2012.

(3) In subsection (1), “NHS services” means health services provided in England for the

purposes of the health service continued under section 1(1) of the National Health

Service Act 2006.

PART 4

TREATIES

22 Treaty requirements

37

(1) No treaty which requires the United Kingdom—

(a) to change; or

(b) to limit the powers of the United Kingdom in respect of

NHS legislation shall be signed or agreed unless any such changes or limits have been

approved by—

(i) in relation to England, an Act of Parliament;

(ii) in relation to Scotland, an Act of the Scottish Parliament;

(iii) in relation to Wales, an Act of the National Assembly for Wales; and

(iv) in relation to Northern Ireland, an Act of the Northern Ireland Assembly.

(2) In subsection (1)—

“to change” means to amend, repeal, introduce or otherwise to change;

“NHS legislation” means any primary legislation passed by Parliament,

the Scottish Parliament, the National Assembly for Wales or the

Northern Ireland Assembly, and any secondary legislation enacted by

the Secretary of State or any of the devolved administrations, relating

to—

(a) as regards England, the comprehensive health service which

must be continued under section 1(1) of the National Health

Service Act 2006;

(b) as regards Scotland, the comprehensive and integrated health

service that must be continued under section 1(1) of the

National Health Service (Scotland) Act 1978;

(c) as regards Wales, the comprehensive health service that must

be continued under section 1(1) of the National Health Service

(Wales) Act 2006; and

(d) as regards Northern Ireland, the integrated health services and

personal social services that must be provided or secured under

Article 4 of the Health and Personal Social Services (Northern

Ireland) Order 1972;

“treaty” means a written agreement between States or between States and

international organisations which is binding under international law

and includes any protocol, annex or schedule to or an amendment or

replacement of such an agreement and includes a regulation, rule,

measure, decision or similar instrument made under a treaty, which has the effect

mentioned in subsection (1).

38

PART 5

FINAL PROVISIONS

23 Commencement and transitional arrangements

(1) Section 1 of this Act, and subsection (3) below, shall come into force on the day on

which this Act is passed.

(2) The other provisions of this Act shall be brought into force on such day as the

Secretary of State may by order appoint that is not later than twelve months from the

day on which this Act is passed; and different days may be appointed for different

provisions and for different purposes (including different areas).

(3) Schedule 8 makes provision about current services during any period before all the

provisions of this Act are brought into force.

(4) In subsection (3), “current services” means health services which are at the time this

section comes into effect are being provided, secured or arranged under the National

Health Service Act 2006 or the Health and Social Care Act 2012.

24 Further and consequential amendments

Schedule 9 shall have effect.

25 Interpretation

Expressions used in this Act which are also in the National Health Service Act

2006 and in the Health and Social Care Act 2012 shall have the same meanings

as the meanings given to those expressions under those Acts.

26 Short title and extent

(1) This Act may be cited as the National Health Service Reinstatement Act 2014.

(2) This Act extends to England, and, in relation to section 22, to Scotland, Wales and

Northern Ireland.

39

SCHEDULES

Schedule 1 – Further provision about the Secretary of State and services

Schedule 2 – Public Health

Schedule 3 - NHS England and its Regional Committees

Schedule 4 - District Health Authorities

Schedule 5 – District Health Authorities: Additional Functions

Schedule 6 – Repeals

Part 1: Further repeals consequent on abolition of clinical

commissioning groups

Part 2: Further repeals consequent on abolition of NHS trusts

Part 3: Further repeals consequent on abolition of NHS foundation

trusts

Part 4: Further repeals consequent on the abolition of the National

Health Service Commissioning Board

Part 5: Other miscellaneous repeals

Schedule 7 - Community Health Councils

Schedule 8 – Transitional Arrangements

Schedule 9 – Further and consequential amendments

Part 1: Medical services, dental services, pharmaceutical services,

ophthalmic services

Part 2: Regulation of health and social care

Part 3: Public involvement, local government and scrutiny

Part 4: The National Institute for Health and Care Excellence

Part 5: The Health and Social Care Information Centre

Part 6: Charging

Part 7: Protection of NHS from fraud and other unlawful activities

Part 8: Property and finance

Part 9: Miscellaneous

40

SCHEDULE 1

Section 5

FURTHER PROVISION ABOUT THE SECRETARY OF STATE AND SERVICES

Medical inspection of pupils

Weighing and measuring of children

Supply of blood and other human tissues

Contraceptive services

Provision of vehicles for disabled persons

Provision of a microbiological service by the Secretary of State

Powers of the Secretary of State in relation to research etc

SCHEDULE 2

Section 6

PUBLIC HEALTH

Part 1

PUBLIC HEALTH PROTECTION

Secretary of State’s duty as to protection of public health

Part 2

PUBLIC HEALTH IMPROVEMENT

Functions of local authorities and Secretary of State as to improvements of public health

41

SCHEDULE 3

Section 8

NHS ENGLAND AND ITS REGIONAL COMMITTEES

Part 1

NHS England

[Corporate status, Membership, Appointments, Pay and Allowances, Staff, Regional

Committees, Other Committees and sub-committees]

Part 2

Regional Committees

[Membership, Power to act on behalf of NHS England, Power to act on behalf of the

Secretary of State or another NHS body, Appointments etc.]

42

SCHEDULE 4

Section 9

Part 1

DISTRICT HEALTH AUTHORITIES

Establishment

1. It is the Secretary of State's duty to exercise the powers conferred on him by section 9(1)

so as to secure—

(a) that the regions determined in pursuance of those provisions together comprise the

whole of England and that no region includes part only of any district; and

(b) that the provision of health services in each region can conveniently be associated

with a university which has a school of medicine or with two or more such

universities.

2. An order made by virtue of section 9(1) shall contain such provisions for the transfer of

officers, property, rights and liabilities as the Secretary of State thinks fit.

3. It is the Secretary of State's duty before he makes an order under section 9(1) to consult

with respect to the order—

(a) such bodies as he may recognise as representing officers who in his opinion are

likely to be transferred or affected by transfers in pursuance of the order; and

(b) such other bodies as he considers are concerned with the order.

Other matters

[Corporate status, Membership, Appointments, Pay and Allowances, Staff, Committees and

sub-committees]

Part 2

FAMILY HEALTH SERVICES COMMITTEES

43

SCHEDULE 5

Section 9(2)(h)

DISTRICT HEALTH AUTHORITIES: ADDITIONAL FUNCTIONS

1. A DHA shall exercise on behalf of the Secretary of State his duty in section 1(1) by

exercising his functions under the provisions referred to in the following paragraphs of this

Schedule.

2. [Section […], with respect to making arrangements for the conduct of, or assistance by

grants or otherwise to any person for the conduct of, research [etc.]]

3. [Section […], with respect to the payment of travelling expenses.]

4. [Section […], with respect to recognition of regional advisory committees.]

5. [Section […], with respect to recognition of district advisory committees.]

6. [Section […], with respect to arranging with any person or body (including a voluntary

organisation) for that person or body to provide or assist in providing any service under the

Act, but subject to the provisions of this Act.]

7. [Section […], with respect to making available to certain persons and bodies (including

voluntary organisations) facilities and services of persons employed in connection with such

facilities]

8. [Section […], with respect to the agreement of terms and the making of payments in

respect of facilities or services provided under section […].]

9. [Section […], with respect to making available (on such terms as to charges as thought fit)

supplies of human blood.]

10. [Section […], with respect to the supply of goods, services and other facilities to local

authorities and other public bodies and carrying out maintenance work in connection with

any land or building the maintenance of which is a local authority responsibility.]

11. [Section […], with respect to the making available to persons providing general medcial

services, general dental services, general opthalmic services or pharmaceutical services such

goods, materials and other facilities as may be prescribed.]

12. [Section […], with respect to making available any services or other facilities and the

services of employed persons to enable local authorities to discharge their functions relating

to social services, education and public health.]

13. [Other powers in relation to local authorities which may or may not continue to be

relevant, such as a power to arrange to make available to local authorities the services of

specified groups of persons (GPs, dentists etc) so far as reasonably necessary and practicable

to enable local authorities to discharge their functions relating to social services, education

and public health; to consult before making persons available and power to agree terms and

payment; and the function of agreeing charges with local authorities where their employed

staff are made available to enable health authorities to exercise their functions.]

44

14. [Section […], with respect to making available in premises provided under the Act, such

facilities as are regarded as required for clinical teaching and for research connected with

clinical medicine or clinical dentistry.]

15. [Section […], with respect to making available [certain accommodation for GPs et al.]]

16. [Section […] with respect to allowing use of and charging for accommodation or services,

including for private patients.]

17. [Section […] with the respect to the disposal of goods and the production and

manufacture of them in excess of that required for the services provided under the other

provisions of the Act.]

18. [Section […], with respect to authorising hospital accommodation to be made available

on payment of charges for part of the cost and recovering those charges.]

19. [Section […], with respect to allowing accommodation and services, authorised to be

made available in connection with the treatment, in pursuance of arrangements made by

medical or dental practitioners, of their private patients as resident patients.]

20. [Various other functions such as those relating to charges to non-residents, charges for

more expensive supplies, charges for replacement or repair of appliances and vehicles, land

acquisition and other property required for the purposes of the Act and use and maintenance

of any property belonging to the Secretary of State by virtue of the Act (but not his or her

compulsory acquisition powers).]

21. [Specified Mental Health Act functions]

22. [Specified social care functions]

23. [Specified provisions of the Health Services and Public Health Act 1968 – such as those

relating to “the instruction of officers of health authorities and other persons employed or

contemplating employment” by health authorities or in authorities connected with health or

welfare.]

45

SCHEDULE 6

REPEALS

Part 1

Further repeals consequent on abolition of clinical commissioning groups

Part 2

Further repeals consequent on abolition of NHS trusts

Part 3

Further repeals consequent on abolition of NHS foundation trusts

Part 4

Further repeals consequent on abolition of The National Health Service Commissioning

Board

46

SCHEDULE 7

Section 17

COMMUNITY HEALTH COUNCILS

1. Provision may be made by regulations as to—

(a) the membership of Councils (including the election by members of a Council of a

chairman of the Council);

(b) the proceedings of Councils;

(c) the staff, premises and expenses of Councils;

(d) the consultation of Councils by DHAs with respect to such matters and on such

occasions as may be prescribed;

(e) the furnishing of information to Councils by DHAs and the rights of members of

Councils to enter and inspect premises controlled by DHAs;

(f) the consideration by Councils of matters relating to the operation of the health

service within their districts and the giving of advice by Councils to DHAs on such

matters;

(g) the preparation and publication of reports by Councils on such matters and the

furnishing and publication by DHAs of comments on the reports; and

(h) the functions to be exercised by Councils in addition to the functions exercisable by

them by virtue of paragraph (a) of the preceding subsection and the preceding

provisions of this subsection;

and the Secretary of State may pay to members of Councils such travelling and other

allowances (including compensation for loss of remunerative time) as he may determine

with the consent of the Minister for the Civil Service.

2. It shall be the duty of the Secretary of State to exercise his power to make regulations in

pursuance of paragraph 1(a) so as to secure as respects each Council that—

(a) at least one member of the Council is appointed by each local authority of which the

district or part of it is included in the Council's district and at least half of the

members of the Council consist of persons appointed by those local authorities;

(b) at least one third of the members of the Council are appointed in a prescribed manner

by bodies (other than public or local authorities) of which the activities are carried on

otherwise than for profit;

47

(c) the other members of the Council are appointed by such bodies, in such manner and

after such consultations as may be prescribed ; and

(d) no member of the Council is also a member of a DHA or Special Health Authority;

but nothing in this subsection shall affect the validity of anything done by or in

relation to a Council during any period during which, by reason of a vacancy in the

membership of the Council or a defect in the appointment of a member of it, a

requirement included in regulations in pursuance of this subsection is not satisfied.

3. The Secretary of State may by regulations—

(a) provide for the establishment of a body—

(i) to advise Councils with respect to the performance of their functions and to

assist Councils in the performance of their functions, and

(ii) to perform such other functions as may be prescribed; and

(b) make provision as to the membership, proceedings, staff, premises and expenses of

the said body;

and the Secretary of State may pay to members of the said body such travelling and other

allowances (including compensation for loss of remunerative time) as he may determine

with the consent of the Minister for the Civil Service.

4. In this Schedule—

“local authority” means in England a county council; a district council, other than a

council for a district in a county for which there is a county council; a London

borough council; the Council of the isles of Scilly; or the Common Council of the

City of London; and

“district” in relation to a Council, means the locality for which it is established,

whether that locality consists of the district or part of the district of a DHA or such a

district or part together with the districts or parts of the districts of other DHAs; and

the district of a Council must be such that no part of it is separated from the rest of it

by territory not included in the district,

and section 25 shall be construed accordingly.

48

SCHEDULE 8

Section 23(3)

TRANSITIONAL ARRANGEMENTS

[Provisions to ensure continuity of services during the transition]

SCHEDULE 9

Section 24

FURTHER AND CONSEQUENTIAL AMENDMENTS

Part 1

MEDICAL SERVICES, DENTAL SERVICES, PHARMACEUTICAL SERVICES,

OPHTHALMIC SERVICES

[Amendments to Parts 4-7 of the National Health Service Act 2006 consequential to these

services under this Act becoming administered by a District Health Authority’s Family

Health Services Committee]

Part 2

REGULATION OF HEALTH AND SOCIAL CARE

[Further amendments to Part 3 of the Health and Social Care Act 2012 consequential to

commissioning ending under this Act, and private companies providing services only

exceptionally as set out in sections 8(12) and 9(4).]

49

Part 3

PUBLIC INVOLVEMENT, LOCAL GOVERNMENT AND SCRUTINY

[Amendments to various enactments (such as the Health and Social Care Act 2008, the Local

Government and Public Involvement in Health Act 2007 and Part 12 of the National Health

Service Act 2006) consequential to the re-establishment under this Act of Community Health

Councils.]

Part 4

THE NATIONAL INSTITUTE FOR HEALTH AND CARE EXCELLENCE

[Amendments to Part 8 of the Health and Social Care Act 2012 relating to the general duties,

other functions and operation of NICE]

Part 5

HEALTH AND SOCIAL CARE INFORMATION CENTRE

[Amendments to Part 9 of the Health and Social Care Act 2012 consequential to abolition of

the NHS Commissioning Board and in order to protect the confidentiality of patient

information]

Part 6

CHARGING

[Amendments to Part 9 of the National Health Service Act 2006 relating to charging, such as

the power to charge generally; charging for dental services; charging for local pharmaceutical

services; charging for optical appliances and exemptions]

50

Part 7

PROTECTION OF NHS FROM FRAUD AND OTHER UNLAWFUL ACTIVITIES

[Amendments to Part 10 of the National Health Service Act 2006 relating to disclosure

notices and offences]

Part 8

PROPERTY AND FINANCE

[Amendments to Part 11 of the National Health Service Act 2006 relating to property and

finance issues, such as acquisition and use of property, transfers, raising money, the

formation of companies, finance, accounts and audit]

Part 9

MISCELLANEOUS

[Amendments to miscellaneous provisions contained in Part 13 of the National Health

Service Act 2006, such as those relating to independent advocacy services, joint working

with the prison service, emergencies, local social services authorities, community services,

university teaching and research, sale of medical practices, price of medical supplies, and use

of facilities in private practice]